St. Louis & S. F. R. v. Cundieff ( 1909 )

RINER, District Judge.

This was an action to recover damages for personal injuries. The action was originally brought in the United States Court' for the Northern District of the Indian Territory, prior to the time of the admission of the state of Oklahoma into the Union, of which this district became a part. After the admission of the state of Oklahoma, the case was removed to the Circuit Court of the United States for the Eastern District of Oklahoma. The original petition was filed in the United States Court for the Indian Territory on the 12th of June, 1907, and the railroad company filed its answer October 12, 1907. The answer denied the allegations of the petition and also set up as a defense contributory negligence on the part of the plaintiff. October 12, 1907, the day the answer was filed, the plaintiff in the court below filed a motion to strike from the answer portions thereof.

Oklahoma was admitted into the Union November 16, 1907, and on December 11, 1907, the defendant in the court below filed its petition for removal, and the case was removed to the Circuit Court. On April 17, 1908, the case come on for trial, the motion to strike was not called to the attention of the court, and the trial proceeded on the petition and answer. At the conclusion of the evidence the defendant moved the court to direct a verdict for the defendant upon the ground that under the pleadings, as. well as the evidence, the plaintiff was not entitled to recover. The motion was overruled, and an exception saved. The jury returned a verdict in favor of the plaintiff, and on the 20th of April, 1908, the defendant filed a motion for judgment notwithstanding the verdict, on the ground that the pleadings in the case showed that the defendant was entitled to a verdict because no reply had been filed to that part of the answer setting up as a defense the contributory negligence of the defendant.

It is conceded by the plaintiff in error (hereafter referred to as the “railroad company”) that prior to the admission of Oklahoma the Arkansas practice prevailed in the Indian Territory, and that under that practice no reply to the answer was required, but all affirmative allegations of the pleading were treated as in issue. The schedule of the Constitution of Oklahoma (sections 1 and 2) provides as follows:

“Section 1. No existing rights, actions, suits, proceedings, contracts or claims shall be affected by the change in the forms of government, but all shall continue as if no change in the forms of government had taken place.

“Sec. 2. All laws in force in the territory of Oklahoma at the time of the admission of the stale into the Union, which are not repugnant to this Constitution, and which are not locally inapplicable, shall be extended to and remain in force in the state of Oklahoma until they expire by their own limitations or are altered or repealed by law.”

The statutes of the territory of Oklahoma, prior to its admission as a state (St. 1893, § 3980), provided:

“When tire answer contains new nial ter. the plaintiff may reply to such new matter, denying, generally or specifically, each allegation controverted by him, imd he may allege in or dinar j and concise language, and without repetition, any new matter not inconsistent with the petition, constituting a defense to such new matter in the answer, or he may demur to the same for insufficiency, stating in his demurrer the grounds thereof; and he may demur to one or more of such defenses set up in the answer, and reply to the residue."

And that (St. 1893, § 400(5):

“Every material allegation of the petition not controverted by the answer, and every material allegation of new matter in the answer, not controverted, by the reply, shall, for the purpose of the action, be taken as true.”

It is contended by the railroad company that these statutes, by virtue of the constitutional provision above referred to, governed in the trial of this case, and that therefore the railroad company was entitled to a judgment on the pleadings for the failure of plaintiff to reply to the affirmative defense set up in the answer.

It is insisted by the railroad company that as soon as statehood became effective the Oklahoma Code of Procedure applied to all cases then pending in the Indian Territory courts. It is conceded, however, that, if the issues had been joined under the Indian Territory practice, the Oklahoma Code would not relate back and require further proceedings^ but it is said that the issues were not joined because there was pending a motion to strike portions of the answer, up to the time the plaintiff and defendant announced that they were ready for trial.

We do not think the issue upon the question of contributory negligence, to which, under the Oklahoma Code, it was necessary to reply, was governed by the statutes of Oklahoma. The issue was raised without a reply under the Arkansas practice, which, at the time the answer was filed, prevailed in the Indian Territory. The motion to strike never became operative, because it was never called to the attention of the court, and by going to trial without doing so the plaintiff, of course, abandoned it. Furthermore, it is entirely clear from an examination of the motion, which is set out in the record, that, if it had been sustained, there would still remain in the answer a specific denial to every material allegation in the complaint and also the defense of contributory negligence. It is insisted by the railroad company that the provision of the Constitution to the effect that no existing rights, actions, suits, proceedings, etc., shall be affected by the change in the forms of government, does not relate to the forms of procedure. We think this contention cannot be sustained.

The rule of constitutional construction is that the ordinary and common meaning of the words used, in the light of other provisions of the Constitution, must be adopted. The preamble to section 1 of the schedule to the Constitution of Oklahoma provides:

“In order that no inconvenience may arise by reason of a change from the forms of government now existing in the Indian Territory, etc., it is hereby declared as follows.”

And then follows the provision above referred to, together with other provisions, declaring process issued prior to the admission of the state under the authority of the territory of Oklahoma, or under the authority of the laws in force in the Indian Territory, valid and giving it the same force and effect as if issued in the name of the state.

Construing all of these provisions together, we are of opinion that they do not change, and were not intended to change, the method of procedure in cases pending in the courts of Indian Territory and of the territory of Oklahoma, but that the civil cases pending in the Indian Territory should, after statehood, continue under the law in force in the Indian Territory, and under that law no reply was required, prior to statehood. We do not think that the provision of the Constitution relied'upon by the railroad company so’ changes the situation as to make a reply necessary.

The second assignment of error relates to the refusal of the court to permit Dean, a witness for the defendant in error (hereafter referred to as the “plaintiff”), on cross-examination to testify that the plaintiff at the time he received his injury stated to the witness that he was standing on the main line watching the train going east on the passing track, and that the injury was caused by this condition.

The theory upon which this witness was asked these questions on cross-examination, as suggested by counsel, was: That he was one of the first persons to reach the plaintiff after the accident; that he came to the plaintiff almost immediately after the accident; that he had testified to the condition and surroundings, and to remarks made by some of the employés of the railroad company at the time; and that therefore the entire transaction and everything else relating to these conditions, including plaintiff’s statements, constituted a part of the res gestae and were admissible on cross-examination. Counsel concede the rule to be that the cross-examination should be confined to the subject-matter about which the witness has testified on direct examination, but insist that as he had testified in the direct examination that he saw the plaintiff as the train was backing over him, that at that time he (the witness) was about 100 feet distant from the plaintiff, that he immediately went to his assistance, that he and a witness by the name of Pershing were the first ones to reach the plaintiff after the accident, that soon thereafter three trainmen came up, and one of them made some remark about the accident, and that the witness had also described the surroundings, conditions, movement of the trains, place where the plaintiff was found, and all the things which he saw, therefore it was entitled to this testimony, not only on the ground that it was evidence against the plaintiff, hut that being made immediately after the accident, and to the first person who reached him, the statements were a part of the res geste, and that where the witness, on his direct examination, went into a part of the facts concerning the accident and the condition in which the plaintiff was found, it was permissible, on cross-examination, to show the statements made by him as a part of the transaction itself. We think this testimony was competent, and that it was error to exclude it. It is insisted by the plaintiff that the railroad company could have had the benefit of the testimony by making the witness its witness. That is quite true; but, as we view the case, it was not bound to do so. New Jersey Steamboat Co. v. Brockett, 121 U. S. 637, 7 Sup. Ct. 1039, 30 L. Ed. 1049; Sargent v. Home Benefit Association (C. C.) 35 Fed. 711; Travelers’ Protective Association v. West, 102 Fed. 226, 12 C. C. A. 284.

The third assignment of error presents the question of contributory negligence. The record shows: That on the 2d of April, 1907, the railroad company was engaged in the business of a common carrier and operating a line of railroad through the town of Vinita in the Indian Territory; that this line of railway was a part of a trunk litie of railroad over which is operated a large number of freight and passenger trains; that on the evening of the 2d of April, 1907, between 7:30 and 8 o’clock, plaintiff attempted to cross the tracks on Scraper street in the town of Vinita; that the street runs in a general northerly and southerly direction and crosses the railway tracks at right angles; that in attempting to make this crossing the plaintiff was struck by a train backing down on the main line and suffered the injuries complained of. The tracks of the railroad company run approximately east and west, and at Scraper street crossing there are four tracks; the most southerly track being known as “track No. 7,” the next one north of that the “house track,” the next one nortii of the house track the “main line,” and the next one north of the main line the “passing track.” The distance between track No. 7 and the house track, as disclosed by the record, was 111 feet; between the house track and the main line, 55 feet; and between the main line and the passing track, 16 feet. The record shows: That on the evening in question there were two freight trains going east, one closely following the other; that these trains had orders to take the siding at Vinita to permit a freight train coming west to pass; that the first east-bound train passed east on the main line until it crossed Scraper street; that the second train east bound took the passing track which connects with- the main line some distance to the west of Scraper street; that the train first to arrive after crossing Scraper street backed down west on the main line, crossing Scraper street and onto a siding, designated in the record as “track No. 3,” which was west of the crossing, for the purpose of clearing the main line for the west-bound train. The testimony shows: That, as this train was backing across Scraper street, the second train to arrive, which was on the passing track, was pulling forward in an easterly direction, crossing Scraper street; that the plaintiff was proceeding north on Scraper street to his home, which was on the north side of the railway tracks; and that he arrived at. the main line crossing just at the time the train on the main line was backing over the crossing, and was struck by the cars.

He testified: That the train was backing at a rate of speed not to exceed five or six miles an hour; that there were no lights on the rear end of the train, a box car being attached to the train at the rear end of the caboose; that there was no obstruction whatever to prevent the plaintiff from seeing the train which injured him, if it was sufficiently light for him to see it. Had the accident occurred in the daytime, instead of in the evening, the case would not have required discussion, as the rule is well established that where the physical facts are such that the party injured, if he had looked, could have seen the train, the court would disregard his statement that he did look and failed to see it.

The plaintiff testified: That the evening was dark and foggy; that he stopped before going upon the track, but just how far distant from it is not shown, and looked east and west, and could not see the train, although he testified that he did see the train going east on the passing track before he attempted to cross the main line. The case was tried entirely upon the plaintiff’s evidence. Three witnesses besides the plaintiff saw the accident. The plaintiff testified that before he crossed the house trade, which was 71 feet south of the passing track, he could see the train on the passing track going east. If this is true, it is difficult to .understand why he could not see the train on the main line, as there was nothing between him and that train to obstruct his view, and the main line was nearer to him than the passing track. He further testified that, before reaching the main line, he saw a brakeman on the second car ahead of the caboose on the train on the passing track, so that it must have been light enough, according to his own testimony, to enable him to count the cars between the brakeman and the caboose. If the light was sufficient to enable him to do that, it seems to us that it was sufficient to enable him to see the train on the main line, which was nearer to him, if he had stopped and looked as he testified he did.

Weed, one -of his witnesses, testified: That he could see the train backing down on the main line; that, when he first saw it,, he was at a point about halfway between track No. 7 and the house track, or, as shown by the record, about 110 feet distant from the main line; and that the first thing that attracted his attention to it was that he heard it.

Pershing, another witness, who was going east between the passing track and the main line, saw the train when it was 30 or 35 feet south of him.

Dean, another witness, who was accoinpanjdng Pershing, saw the train just as the engine was passing over the plaintiff, and he testified that at the time lie saw the train it was 30 or 35 feet distant from where he was.

Thus we have the testimony of three of the plaintiff’s witnesses, all less favorably situated than he to observe the train, who saw it distinctly at least at a distance of 30 feet.

Plaintiff was a railroadman, familiar with this crossing, and alleged in his petition that it was a part of the trunk line, and that trains were frequently passing and repassing over this crossug. With nothing whatever to obstruct his view or hearing, his statement that he stopped and looked seems to us contrary to all reasonable probability and in direct opposition to the physical facts as disclosed by the record. It is a matter of common knowledge that a freight train moving on a railroad track makes a noise, and, as it only takes two or three steps at most to cross a railroad track, this train, backing at the rate of five or six miles an hour, must have been within a few feet of him at the time the plaintiff attempted to cross.

The testimony, aside from his, taken in connection with the physical facts, shows clearly, we think, that, with the exercise of ordinary care upon his part, this accident: could not have happened. There is no evidence tending to show that the wind was blowing, or that there" was anything to interfere with his hearing, even if he could not see, and it seems incredible that he could not hear a train of freight cars moving on a track so near to him as to overtake him before he could take two steps. Under these circumstances, we think his testimony that he stopped and looked is entitled to no credence and does not create a conflict in the evidence. C. & N. W. Ry. Co. v. Andrews, 130 Fed. 65, 64 C. C. A. 399, and cases there cited.

A person attempting to cross a railroad track must look and listen. A mere casual observation does not satisfy the rule. In the case just cited, the court, speaking through Judge Van Devanter, said:

“The general rule is that a person coming upon or over a railroad crossing is required to use tor his own protection ordinary care, — such care ns men ordinarily exercise under the same or similar circumstances. The amount of care which will satisfy this requirement is necessarily adjusted to and varies with the danger to be guarded against As the danger, or Hie probability of injury therefrom, increases, so do men ordinarily increase the care which they exercise for their own protection. If, therefore, when plaintiff approached the crossing, smoke interfered with the view along the tracks to the west, and prevented him from readily or plainly determining whether a train was coming from that direction, he was at once apprised of the increased danger, and it became his duty to exercise greater caution and vigilance for his own safety than would have been required otherwise.”

In Chicago, R. I. & P. Ry. Co. v. Pounds, 82 Fed. 217, 27 C. C. A. 112, Judge Thayer said:

. “A railroad track is in itself a warning of danger, because trains may be expected to pass at any moment. Therefore the courts have repeatedly declared that a person is, as a matter of law, guilty of contributory negligence if he drives upon a crossing without making a vigilant use of his senses of sight and hearing. If either of these senses is impaired, or for any reason cannot be exercised to advantage, he ought to be more vigilant in the use of the other.” Railroad Co. v. Houston, 93 U. S. 697, 24 L. Ed. 542; Schofield v. Chicago, etc., Ry. Co., 114 U. S. 615, 5 Sup. Ct. 1125, 29 L. Ed. 224; Northern Pac. Rd. Co. v. Freeman, 174 U. S. 379, 19 Sup. Ct. 763, 43 L. Ed. 1014; Garlich v. Railroad Co., 131 Fed. 837, 67 C. C. A. 237; Tomlinson v. Railway Co., 134 Fed. 233, 67 C. C. A. 218; C., B. & Q. Ry. Co. v. Christina Munger (decided at this term) (C. C. A.) 168 Fed. 690.

These cases and many others from the Supreme Court and from this court apply this rule. In most of the cases holding what is apparently a contrary doctrine, it will be found upon investigation that there were physical and topographical obstructions to the faculties of sight and hearing; but in this case there is nothing of that kind.

Conceding that all of the acts of negligence charged against the railroad company are true, yet we think that .the contributory negligence upon the part of the plaintiff is so conclusively shown by this record that the court erred in not sustaining the motion to direct a verdict.

The judgment must be reversed, with instructions to grant a new trial.